Few things are more controversial in America than immigration. The politics of this issue have only raised the intolerance, disbelief and fear factors of both supporters and opponents. Unfortunately, it’s also led federal prosecutors to improve their criminal case success rates by pursuing what many perceive as “low-hanging fruit”: immigration violators. You do have options. If you’re facing illegal reentry charges, contact the Southern California lawyers at Fakhimi & Associates today. You don’t have to face an unfamiliar system alone.
Prosecutions for immigration violations are rising at a fast pace, recently, it’s risen by 16 percent in a single year, and they account for more than half the cases brought by the federal government.
One of the most common offenses is “illegal reentry,” as codified in 8 U.S.C. 1326.
Our experienced and compassionate Riverside & Orange County immigration lawyers know the statutes that define the Illegal Immigration Reform and Immigration Responsibility Act. The law makes it a crime for any alien previously deported, removed, excluded or denied admission to then enter or attempt to enter without the express consent of the U.S. Attorney General’s Office.
There are many nuances in the laws, but basically, the prosecutor must prove to the courts:
- Defendant is not a citizen of the United States
- Defendant was previously removed from the U.S.
- Defendant entered, tried to enter or was found back in the U.S. without the U.S. government’s permission
The penalty for illegal reentry after deportation varies. Usually, the statutory maximum penalty is 2 years in federal prison. But there are some exceptions. This is why experience matters when seeking a defense attorney.
A defendant who was removed following conviction for either a single felony or three or more misdemeanors involving violence or drugs can face up to 10 years in federal prison.
Meanwhile, a defendant removed following the conviction of an aggravated felony will face a maximum 20 years in federal prison for illegal re-entry.Can Prior Deportation Proceedings be Challenged?
In most criminal law, the government does not provide any explicit defenses.
These cases are different because a key element of the offense is prior deportation (or removal, etc.). Therefore, defendants are entitled to file a pre-trial motion that cuts to the core of the prior deportation. If the defendant can show prior deportation or removal was not lawful, he or she cannot be convicted of illegal re-entry. That this can be done relatively early in the process can mean quick relief for a defendant – assuming there is evidence the older deportation was not conducted properly.
This allowance was established in the 1987 U.S. Supreme Court case of U.S. v. Mendoza-Lopez. In that case, defendants were deported following a joint hearing at which they allegedly waived their right to apply for a suspension of deportation and their right to appeal. When defendants were later arrested in the U.S. and charged with illegal re-entry, they successfully argued the trial judge in the first case failed to adequately explain their legal rights. Because the first deportation was central to the charge of illegal re-entry, the charges were dismissed.
Following that decision, federal lawmakers stepped in to amend U.S.C. 1326 to indicate there is a three-part test under which a defendant can challenge an older deportation for purposes of defending an illegal re-entry charge.
The three-part test is as follows:
- Defendant exhausted all other administrative remedies that were available to seek relief against the order
- Deportation proceedings improperly deprived defendant of the chance for appropriate judicial review
- Fundamental unfairness of initial order
It’s not enough, however, to show prior deportation proceeding was flawed. The defendant must further show the error or errors caused defendant prejudice. That is, he or she must show there was a plausible ground from which relief from deportation could have been obtained – not that they actually would have been granted that relief.Are there Other Defenses to Illegal Re-Entry Charges?
One of the first things our legal team will analyze in these cases is defendant’s status. Knowing whether permission has been obtained, how it was obtained and/or how it was lost is important to determining how best to move forward.
The next thing our immigration attorneys review is the presence of aggravated felonies. Often, if a person charged with this offense has a prior conviction for an aggravated felony, he or she will not be granted relief. However, there are sometimes arguments that can be made that certain crimes should not qualify for purposes of these proceedings. Our team will also closely analyze our client’s family situation. If a person has many ties to the U.S. – parents, spouses, children, extended families, etc. that can be important for arguing mitigating circumstances.
We may look at the waivers signed in your case. It is very common for immigration officials to press defendants to sign waivers for almost everything, often without counsel present and absent providing a clear understanding of what it is they are signing. These documents could be used to a defendant’s advantage.
There may also be a statute of limitations issue if there is evidence authorities were aware of defendant’s presence long before immigration charges were filed. (For example, he or she was arrested on a minor charge years earlier.) If that is the case, the state may not be able to use older prior criminal offenses against the defendant in this proceeding.What is an I-212?
The Application for Permission to Reapply for Admission into the United States After Deportation or Removal, also known as Form I-212, is exactly as the title implies. It is an application made to the government following a deportation. An alien who is otherwise inadmissible may file Form I-212 to obtain “consent to reapply for admission”. This is mandatory before legal reentry into the U.S. can be allowed. This is sometimes known as a “consent to reapply” application.
You do have options available to you and your family. These are challenging cases, but there are a number of ways that prove advantageous for those seeking to remain in this country, even if there is an illegal reentry charge. To learn more, contact our Riverside & Orange County immigration lawyers today.